The New Jersey Supreme Court today issued a decision holding that it was improper for the State to submit rap lyrics to a jury in a criminal case where the lyrics were not directly connected to the crime itself. The Court recognized rap lyrics – including violent and profane rap lyrics – as a form of artistic expression, but one that many people find distasteful, which could improperly prejudice a jury who reads them.

In the case under discussion, the prosecution submitted rap lyrics written by Vonte Skinner not as evidence he committed the crime with which he was charged, but just as a general indicator of his motive and intent. By doing so, the state was able to convince a jury to return a guilty verdict on multiple charges.

Defendant was charged with first-degree attempted murder and related charges, and, before trial, he requested a preliminary hearing to contest the admissibility of his rap lyrics. The court concluded that the lyrics were relevant because they tended to prove the State’s theory of the case and found them admissible under N.J.R.E. 404(b) because they provided insight into defendant’s alleged motive and intent. Accordingly, the court ordered that redacted portions of defendant’s lyrics would be admitted into evidence. Defendant’s first trial resulted in a mistrial after the jury was unable to reach a unanimous verdict.

Prior to his retrial, defendant renewed his objection to the admissibility of the rap lyrics, and the court again found them admissible. At defendant’s second trial, a detective testifying for the State read to the jury extensive passages from defendant’s lyrics, depicting violence, bloodshed, death, and dismemberment unconnected to the specific facts of the attempted-murder charge against defendant... The jury convicted defendant of attempted murder, aggravated assault, and aggravated assault with a deadly weapon, and the trial court imposed an aggregate thirty-year sentence with an eighty-five percent parole disqualifier.

The appeals court reversed this decision, finding that the admission of Skinner's rap lyrics as evidence had a "prejudicial impact [that] vastly outweighed any probative value." The state appealed this decision, bringing it to the state Supreme Court.

The Supreme Court upheld the appeals court's findings, noting that the history of artistic expression is littered with violent narratives unconnected to actual criminal activity.

In assessing the probative value of defendant’s fictional lyrics, the Court notes that probative evidence may not be found in an individual’s artistic endeavors absent a strong nexus between specific details of the artistic composition and the circumstances of the offense for which the evidence is being adduced. The Court explains that the difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavors is that one cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views. One would not presume that Bob Marley, who wrote the well-known song “I Shot the Sheriff,” actually shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story “The Tell-Tale Heart,” simply because of their respective artistic endeavors on those subjects. The Court reasons that defendant’s lyrics should receive no different treatment. This approach is in accord with other jurisdictions that have considered similar questions. The Court concludes that the violent, profane, and disturbing rap lyrics authored by defendant constitute highly prejudicial evidence against him that bore little or no probative value as to any motive or intent behind the attempted murder offense with which he was charged. The admission of defendant’s inflammatory rap verses, a genre that certain members of society view as art and others view as distasteful and descriptive of a mean-spirited culture, risked poisoning the jury against defendant.

That last sentence distills the motivation behind the growing popularity of this prosecution tactic. A jury of supposed peers is going to contain any number of people who find rap music and its subject matter offensive and an "indicator" of a person's criminal intent, whether or not such intent exists. If the court had gone the other way, there is no doubt that rap lyrics would be submitted en masse for easy wins. Fortunately, this decision directs prosecutors to more strenuously weigh their evidence before submission.

In sum, rap lyrics, or like fictional material, may not be used as evidence of motive and intent except when such material has a direct connection to the specifics of the offense for which it is offered in evidence and the evidence’s probative value is not outweighed by its apparent prejudice. In the weighing process, courts should consider the existence of other evidence that can be used to make the same point. When admissible, such evidence should be carefully redacted to ensure that irrelevant, inflammatory content is not needlessly presented to the jury.

Because rap lyrics tend to deal with the holy trinity of guns, drugs and money, prosecutors will still feel strongly tempted to introduce these written words as background color, if nothing else. The court's directions, while aimed at prosecutors, will likely have a greater effect on lower courts' standards for evidence admission. A state Supreme Court decision that doesn't specifically forbid the introduction of rap lyrics as evidence will just be probed for weaknesses by enterprising prosecutors, the same group that often finds someone's expressed thoughts to be inseparable from their deeds.

The case also has limited bearing on a similar set of circumstances currently being examined by the US Supreme Court, where a man with a history of making outrageous comments on social media sites -- like expressing his desire to kill his estranged ex-wife or shoot up a school -- is now finding his words being used against him as evidence of criminal intent. This person has also referred to some of his postings as "rap lyrics" and has noted that much of what has been submitted as evidence has been taken out of context -- that context being the accused's long history of running his mouth carelessly on a variety of social media platforms.

Unlike Skinner, no physical crime has been committed. Instead, these postings have been treated as threats by prosecutors, which brings a different perspective to the proceedings. In this case, intent is the whole of the crime, rather than just one aspect of it and, as such, should be very carefully weighed unless the US Supreme Court wants to make criminals out of the Bob Marleys and Edgar Allan Poes scattered across the web.